Federal Court of Australia

BJKY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1495

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application dated 19 December 2024 be dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant is an Albanian citizen who arrived in Australia on 12 February 2009. On 15 February 2011, the applicant was granted a Class BC Subclass 100 Spouse visa.

2    On 15 February 2021, the applicant was convicted and sentenced by the District Court of South Australia to 7 years, 8 months and 26 days’ imprisonment for a range of drug offending, including trafficking a large commercial quantity of a controlled drug and cultivating a commercial quantity of a controlled plant. The applicant had also previously received a suspended sentence of four years’ imprisonment by the Full Court of the Supreme Court of South Australia for two counts of blackmail.

3    On 28 July 2021, the applicant’s visa was mandatorily cancelled by a delegate of the first respondent (the Minister) under s 501(3A) of the Migration Act 1958 (Cth). Following the applicant’s request for the delegate’s decision to be revoked, on 23 February 2024, a subsequent delegate decided not to revoke the original cancellation.

4    The applicant sought review of the delegate’s non-revocation decision in the Administrative Appeals Tribunal. On 8 May 2024, the Tribunal set aside the delegate’s decision not to revoke the original decision and made a decision to revoke the visa cancellation. As a result of the Tribunal’s decision, the applicant’s visa was reinstated and the applicant was released from immigration detention.

5    On 3 June 2024, the Minister made a personal decision under s 501BA to set aside the Tribunal’s decision and to cancel the applicant’s visa, as the Minister was satisfied that the applicant did not pass the character test due to the operation of s 501(6)(a) (substantial criminal record), and that the cancellation was in the national interest.

6    The applicant lodged his originating application seeking judicial review of the Minister’s decision on 17 June 2024. On 6 August 2024, the applicant was removed from Australia.

7    The applicant has a wife and child who are both Australian citizens. I was informed by counsel of the applicant that the applicant’s wife and child have since joined the applicant in Albania.

Grounds of review

8    The applicant lodged an amended originating application (AOA) on 22 November 2024. The AOA made some amendments to the original four grounds of review, which the Minister did not oppose.

9    The AOA also sought to introduce a fifth ground of review. The Minister opposed leave being granted to the applicant to rely on the fifth ground of review. I determined in the course of the hearing that leave would not be granted for the applicant to raise the fifth ground of review. My reasons for doing so are discussed in turn below.

10    To summarise, the five grounds of review the applicant sought to raise:

(a)    Ground 1: The Minister fell into jurisdictional error in that his decision gave rise to an apprehension of bias;

(b)    Ground 2: The Minister fell into jurisdictional error by taking an overly narrow interpretation of whether the cancellation was in the national interest;

(c)    Ground 3: The Minister fell into jurisdictional error by misconstruing and/or taking an inflexible approach in determining community expectations;

(d)    Ground 4: The Minister fell into jurisdictional error in that his decision lacked evident and intelligible justification and was legally unreasonable;

(e)    Ground 5: The Minister’s decision was invalid as it was punitive in nature and therefore infringed Ch III of the Constitution. This ground was put forward in three separate forms. Firstly, that s 501BA of the Act was generally invalid because decisions under it were per se punitive. Alternatively, the Minister’s decision was invalid because of the specific circumstances of the case and/or the specific consequences that resulted from the cancellation. Alternatively, the Minister acted in a manner that caused the decision to become punitive.

11    Each ground is considered in turn below.

Ground 1 – apprehension of bias

12    Under the first ground, the applicant alleges a reasonable apprehension of bias arises in respect of the Minister’s decision. In seeking to make out this ground, the applicant refers to three media reports between 29 May 2024 and 30 May 2024, being:

(a)    a transcript of an ABC interview between the Minister and Mr Greg Jennett on 29 May 2024;

(b)    a transcript of a radio interview on ABC AM between the Minister and Ms Sabra Lane on 30 May 2024; and

(c)    a transcript of an interview on Sky News between the Minister and Mr Kieran Gilbert on 30 May 2024.

13    The applicant submitted, by reference to the above interviews, that a common theme emerged. Counsel for the applicant referred specifically to sections of the transcripts where:

(a)    the Minister referred to Tribunal decisions being difficult to reconcile with the expectations of the Australian community and common sense;

(b)    the Minister referred to the specific number of visas he had personally cancelled in recent days;

(c)    the Minister referred to his intention to issue a revised direction which he considered would lead to decisions more in line with common sense and community safety expectations;

(d)    the Minister was asked questions regarding the political pressure he was under in relation to his position given the issues which had come to light regarding visa decisions of criminal non-citizens.

14    Although the applicant’s submissions lacked a degree of specificity, the applicant’s general submission was that the interviews, taken holistically, created a reasonable apprehension that the Minister was biased. Bias in this context was submitted to manifest in two forms, being (i) the Minister approaching the visa cancellation decision from a position of pre-judgment, and (ii) the Minister having an interest in the outcome of the decision due to the political pressure on his position.

15    Counsel for the applicant stressed that the applicant is not required to prove (and did not allege) that the Minister was actually biased. Rather, the applicant submitted that it is enough to show that in all the circumstances the parties or the public might entertain a reasonable apprehension that the Minister might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [111] (Kirby J).

16    In the recent decision of Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419, Button J outlined the principles relevant to an assessment of apprehended bias. The case dealt with substantively the same issue where an allegation of apprehended bias was raised against the Minister by reference to the same 29 May 2024 ABC interview and the 30 May 2024 Sky News interview. Unlike in the present case, reference was not made to the ABC radio interview, although reference was made to an additional press release by the Minister’s office on 3 June 2024 (which the applicant does not rely on in the present case).

17    As Button J outlined at [23]-[27] of Jama:

… the Ebner “double might” test applies to determine whether a decision is affected by apprehended bias (referring to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63). In the migration context, the test has been explained as follows by Kiefel CJ and Gageler J (as his Honour then was) in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 (QYFM) (citations omitted):

[37]    … The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

[38]    Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

The Applicant also accepted that a Minister does not need to have an empty mind when making a decision and may make statements as to how he or she proposes to administer legislation in certain classes of cases (provided the statement does not disclose an error of law): [Jia] at [71]–[72] (Gleeson CJ and Gummow J).

In [Jia], Gleeson CJ and Gummow J stated (at [71]–[72]) that the question is whether a decision-maker’s mind is “open to persuasion” and explained that “[t]he state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.

In [Jia], the Minister had made observations in a radio interview that were critical of the Tribunal. The Minister also mentioned Mr Jia’s individual case in his interview. The majority in [Jia] recognised that Ministers have functions in the arena of public debate, political controversy and democratic accountability, such that their conduct may need to be evaluated in light of his or her political role, responsibility and accountability: [Jia] at [61], [63] (Gleeson CJ and Gummow J), [187]–[192] (Hayne J) and [244]–[245] (Callinan J). Ministers are engaged in the political sphere and do not have to conduct themselves with the same impartiality required of a judge: [Jia] at [104]–[105] (Gleeson CJ and Gummow J), [245] (Callinan J); see also Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171; [2017] FCA 654 at [82] (Farrell J) (upheld on appeal).

Where a Minister expresses a policy position that is relevant to the exercise of a power, that does not constitute a basis for apprehended bias, provided the view or position expressed does not itself involve an erroneous view of the Minister’s task and the matters relevant to it. In [Jia], Hayne J explained that (emphasis added):

[190]    There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual's case.

[191]    Determining the standard in that way would not fetter the exercise of a discretion. The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person. All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.

[192]    Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.

18    In the 29 May 2024 ABC interview the Minister relevantly stated:

What we’ve seen in the AAT decisions is that the original intent of Ministerial direction 99 was not being followed. We’ve seen that we’re not seeing the common sense approach that Australians should expect, nor are we seeing the focus on community safety. …

Well, some of the AAT decisions are very hard to reconcile with any sense of the expectations of the Australian community, nor, frankly, common sense. These are very concerning. That’s why I’ve also rushed to consider cancellation submissions in respect of some of the cases that have been brought to light. And I’ve already cancelled six visas having done so. …

[A]nd what we are seeing here is something that has not been producing the common sense and community safety focused results that the Australian government and indeed the Australia community expects.

19    In the subsequent 30 May 2024 ABC radio interview, the Minister made the following comments:

We believe that these decisions need to be guided by two clear principles, the protection of the Australian community and by common sense…

What we are doing is ensuring that the original intent of the Ministerial direction that’s now in place, and indeed former Ministerial directions, is given effect to…

Since in the last few days, I’ve cancelled seven visas, I’m considering one as, as we speak… and I’ll get back to it as soon as this interview is over. There are around 30 that I’ve called up as a matter of absolute urgency. I’m looking through these day and night.

20    In the 30 May 2024 Sky News interview, the Minister made the following comments, which largely reflected similar comments made in the ABC interviews:

There have been decisions where the AAT has been overturning cancellation. They have been notified, cancellation submissions are underway. We're working day and night to get on top of this, to ensure that my priority, community safety, is the priority that we see across the booth [sic] system…

The Prime Minister went through a range of cases in question time yesterday where the tribunal have been making decisions that don't meet the expectations of the Australian community, that don't meet the standard of common sense…

Well, these are cases that go to some serious offending, some really serious offending, that, frankly, where the decision of the tribunal does not meet my expectations, I've considered them and it's in the national interest, in my view, that the visas continue to be cancelled so that the community can be kept safe. This is, of course, Kieran, why we're going to issue a new revised Ministerial direction to ensure that community protection is absolutely the centre of this and that we strengthen some of the other aspects, family violence, but also really ensure that the perspective of victims and victims families is brought to bear…

Well, I will consider the cancellation as you'd imagine. I've got to apply the test, but I'm considering these cancellations as a matter of the utmost urgency. Submissions are coming up and I will consider them as soon as they come up and I will deal with them in accordance with my view about the national interest and the absolute imperative of community safety.

21    For the same reasons Button J articulated in Jama at [37]-[47], I agree that the Minister’s statements in the relevant interviews are not such that a fair-minded lay observer might apprehend that the views expressed by the Minister gave rise to the possibility that the Minister would inevitably cancel the Applicant’s visa.

22    Reading the Minister’s comments fairly, the Minister was not asserting that all Tribunal decisions lacked common sense or were made incorrectly. Instead, he was criticising some Tribunal decision-making that had come to his attention.

23    As Button J outlined at [37] of Jama, the Minister’s statements regarding the Tribunal fall within the bounds of the Minister’s political role, and explain why a new ministerial direction was being prepared. The Minister’s statements do not support the contention that a fair-minded lay observer might consider that the Minister might have a closed mind such that he would cancel the visa of every person where the Tribunal had set aside a delegate’s original revocation decision.

24    Indeed, in the Sky News interview, the Minister explicitly resisted the suggestion that the 30 visas that were being looked at by the Minister would necessarily result in those visas being cancelled. The Minister specifically stated that submissions would be received, that he would consider the submissions, apply the relevant test, and then deal with the visas in accordance with his views about the national interest.

25    Similarly, the Minister’s statements regarding his views on community expectations and the priority of community safety fall within the ambit of the Minister’s political role. It was open for the Minister to express such views and apply those views in considering the cancellation decisions: see Jama at [38]. The setting of such a standard, even if likely to increase the likelihood that the applicant’s visa would be cancelled by the Minister, does not itself involve error and does not give rise to apprehended bias.

26    While the applicant sought to draw attention to the Minister’s repeated reference to the specific number of visas cancelled as evidencing some prejudgment on the Minister’s behalf, in referring to the number of visas cancelled, the Minister did not state how many visas he had considered. His statements do not convey that the Minister was approaching the task of considering the visa cancellations with a closed mind.

27    Considering the Minister’s comments as a whole, they convey his views regarding the need to prioritise community safety in determining whether the cancellation of an individual’s visa is in the national interest. It was not suggested that the Minister’s views on the importance of community safety involved any error of law. The Minister’s comments also convey his view that some Tribunal decisions did not accord with community expectations. However, what the Minister’s comments do not convey is a view that all relevant Tribunal decisions revoking visa cancellations lacked “common sense”, or that he had prejudged any particular case that was before him (noting that, in any case, the applicant did not establish that his was one of the cases which the Minister might have made reference to in the interviews).

28    For the reasons given above, the Minister’s comments taken as a whole would not cause a fair-minded lay observer to think that the Minister’s mind may be so closed that he would inevitably set aside the Tribunal’s decisions and decide to cancel the applicant’s visa.

29    Additionally, I do not consider that an argument for apprehended bias can be made on the basis of the questions posed to the Minister regarding whether his position as minister was at risk. There is little basis to link the political pressure on the Minister’s position with the notion that a fair-minded lay observer would think that the Minister was approaching the visa cancellation decisions with a closed mind, particularly in the context of what the Minister’s comments, taken as a whole, would reasonably be taken to convey (as discussed above). In the context of the Minister’s function, which necessarily involves public debate and political controversy, political pressure on their role is to be expected. It is quite another thing to suggest that, due to some form of political pressure, they would somehow be disabled from exercising the powers the legislature has granted them.

Ground 2 – Narrow approach to national interest

30    Under the second ground, the applicant alleges that the Minister fell into jurisdictional error by taking an overly narrow interpretation of whether the cancellation was in the national interest.

31    In making this argument, the applicant argues that the Minister is not permitted to apply an overly narrow interpretation of what may be in the national interest, and must take into account relevant considerations which include Australia’s reputation in the international community, the impact of the Minister’s approach on international relationships, the impact of the decision on Australian citizens, and/or the national interest implications of a Minister publicly accusing the Tribunal of making decisions without applying “common sense”.

32    It is unclear how the factors listed by the applicant above are said to be supportive of a decision in the applicant’s favour. In any case, what is in the national interest is “broad and evaluative” and is “largely a political question”: see Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

33    Although the Minister is required to satisfy himself that the cancellation is in the national interest reasonably, the Act does not stipulate any factors that the Minister must have regard to in determining whether the cancellation is in the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154 at [44]; Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [61] (McKerracher, Markovic and SC Derrington JJ). The Minister is left largely unrestrained to determine what factors are to be regarded as relevant when determining whether a cancellation of a visa is in the national interest: see Candemir v Minister of Home Affairs (2019) 268 FCR 1; [2019] FCAFC 33 at [20]-[21] (Collier, Robertson and Thawley JJ); Palmer at [44].

34    For these reasons, ground 2 must fail.

Ground 3 – Community expectations

35    By ground 3, the applicant alleges that the Minister fell into jurisdictional error by misconstruing or taking an inflexible approach in determining community expectations, which impacted the Minister’s determination that the cancellation of the applicant’s visa was in the national interest.

36    In determining whether the cancellation of the applicant’s visa was in the national interest, the Minister’s reasons refer to two factors, being the protection of the community, and the expectations of the Australian community.

37    The applicant refers specifically to [57] of the Minister’s reasons which state:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

38    The applicant submits that the statement extracted above shows that the Minister was applying Ministerial Direction No 99. The applicant submits that the Minister applied the direction to guide his consideration of community expectations, in circumstances where the Minister was not required to confine his consideration in such manner.

39    Counsel for the Minister accepted that the Minister conceptualised the expectations of the Australian community in a way which was essentially identical to Ministerial Direction No 99, and also accepted that the Minister is not bound by the direction.

40    The Minister’s reference to the direction is hardly surprising given the Minister was the author of the direction. I accept the Minister’s submission that, having regard to the breadth of the power under s 501BA of the Act, it was permissible for the Minister to conceptualise community expectations in this way. There is no error disclosed in the Minister approaching the question of community expectations in this way. Ground 3 discloses no basis for review.

Ground 4 – Lack of justification / legal unreasonableness

41    By ground 4, the applicant alleges that the Minister fell into jurisdictional error in that his decision lacked evident and intelligible justification, and was legally unreasonable. The applicant’s submissions on this ground focused on the fact that the Tribunal’s decision was thorough and carefully considered, having spent 62 paragraphs of its reasons discussing the protection of the Australian community. The applicant submitted that in light of the Tribunal’s thoroughly considered decision, it was legally unreasonable for the Minister to determine that the Tribunal had not been applying “common sense”. Additionally, the applicant argues that the Minister could have chosen to seek a review of the Tribunal’s decision but chose to “circumvent” the appeal process by making a decision under s 501BA of the Act.

42    The test for unreasonableness “is necessarily stringent” and it “would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11] (Kiefel CJ), [52] (Gageler J), [84] (Nettle and Gordon JJ).

43    In determining whether the cancellation of the applicant’s visa was in the national interest, the Minister spends some 39 paragraphs considering the protection of the community, considering the nature of the applicant’s criminal conduct, the risk posed to the Australian community, and the applicant’s remorse and rehabilitation in respect of his previous conduct. The Minister’s reasons then consider additional relevant factors to the decision in some detail. Although the reasons provided by the Minister may discuss some issues at shorter length than the Tribunal’s reasons, that fact alone, nor the fact that the Minister diverged from the Tribunal’s reasoning are evidence of legal unreasonableness: see Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at [25] (Mortimer J, as her Honour then was). The Minister’s reasons reveal an evident and intelligible justification for the decision reached.

44    The applicant has also not established that any comments made by the Minister regarding the Tribunal having not applied common sense were made in relation to the Tribunal’s decision regarding the applicant. In any case, the applicant has failed to establish that any such finding was prohibited.

45    Additionally, I also accept the Minister’s submissions that s 501BA operates independently from any judicial review of the Tribunal’s decision that may have been possible. The section permits the Minister to override the Tribunal, and in doing so, the Minister is not required to refute the reasoning of the Tribunal: Tereva at [28].

Proposed Ground 5 – Minister’s decision was punitive

46    As outlined above, the applicant sought to raise a further ground of review in his AOA. The Minister opposed leave being granted to the applicant to rely on the fifth ground of review on the basis that it was not reasonably arguable.

47    Under proposed ground 5, the applicant argues that the Minister’s decision under s 501BA to revoke the applicant’s visa was invalid due to the decision being punitive in nature, and therefore, in breach of Ch III of the Constitution. The applicant seeks to raise the new ground primarily in light of the recent High Court decision of YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 419 ALR 457; [2024] HCA 40.

48    So far as I understand it, the applicant submits that the Minister’s decision was punitive in nature for two reasons:

(a)    Firstly, the specific consequences that resulted from the cancellation; and

(b)    Alternatively, the manner in which the decision was made, in that the Minister “chose to circumvent the appeal process by making a personal decision pursuant to s 501BA”.

49    In making the above submissions, the applicant relies primarily on an affidavit of Ms Marion Le, the applicant’s migration agent, dated 22 November 2024. In the affidavit material, Ms Le deposes to the conversations she had with the applicant’s wife regarding the circumstances in which the applicant was re-detained. The general substance of the material is that on 5 June 2024, several armed officers entered the house where the applicant was residing alongside his mother, wife and child. The officers were said to have entered the house at night, to have detained the applicant and his wife, and to have otherwise acted in an intimidating manner.

50    In her affidavit, Ms Le also deposes to discussions with the applicant and his wife regarding the applicant’s treatment while in detention. In particular, Ms Le refers to the applicant being held in solitary confinement in Adelaide, being transferred to Melbourne away from his family, and her view that the applicant was suffering from mental health issues that were not attended to.

51    It should be noted that the relevant paragraphs of Ms Le’s affidavit which outlined the above were objected to by the Minister on the basis of relevance and hearsay. However, it is unnecessary for the purpose of this matter to determine the objections finally.

52    An initial reading of the AOA indicates that the applicant also argued that s 501BA was generally invalid because decisions made under it were per se punitive (ie, independent from the specific circumstances of the applicant’s case). The applicant’s written submissions, however, subsequently clarified that the applicant does not assert that general decision making under s 501BA is invalid.

53    In any case, I accept the Minister’s submission that reference should be had to Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333; [2018] HCA 2, where Kiefel CJ, Bell, Keane and Edelman JJ considered the validity of the mandatory visa cancellation under s 501(3A) of the Act. In that case, the applicant sought to argue that s 501(3A) purported to invest judicial power in the Minister and his delegates. Their Honours stated:

[47]    The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light…

[48]    The power to cancel a visa by reference to a person’s character, informed by their prior offending, is not inherently judicial in character. It operates on the status of the person deriving from their conviction. By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment.

…

[53]    None of the plaintiff’s arguments which have been dealt with to this point address the question whether s 501(3A) actually authorises or requires the plaintiff’s detention. They proceed upon an assumption that it does. On its face s 501(3A) is simply a provision which mandates the cancellation of a visa if the conditions stated are present.

[54]    The plaintiff submits that s 501(3A) may nevertheless be seen as concerned with punishment because it exposes a person who qualifies for cancellation to detention. It will also be recalled that the plaintiff contends that, regardless of its terms, the legal operation and effect of the provision extend his punishment beyond what has been ordered by a court…

[56]    These submissions fail to take account of the statutory scheme and the effect of a cancellation decision. A cancellation decision has the immediate effect that the person’s status is changed from that of a lawful non-citizen to an unlawful non-citizen. Section 501(3A) merely provides the basis for the change in status. It does not authorise detention. It is that new status that exposes the person to detention under s 189. The person is liable to removal from Australia and to detention for that purpose from the time that a cancellation decision is made. The possibility that a cancellation decision might be revoked, so that that decision may be taken not to have been made, does not alter the fact that the person retains the status of an unlawful non-citizen for the whole of the period in question, from the time of the cancellation decision to the making of the revocation decision…

…

[63]    Section 501(3A) did not authorise or require the detention of the plaintiff. It required that a visa granted to him as a non-citizen be cancelled on account of his criminal history and his imprisonment. The change in his legal status to that of an unlawful non-citizen had the effect that he was liable to removal from Australia and to detention to facilitate that removal. That is the scheme of the Migration Act.

(Citations omitted.)

54    Gageler and Gordon JJ, in their agreeing judgment, also stated:

[68]    The plaintiff contended that s 501(3A) purports to confer the judicial power of the Commonwealth on the Minister, contrary to Ch III of the Constitution. That contention was put in two broad ways: first, an exercise of s 501(3A) “results in” or “causes” detention for a punitive purpose contrary to the limitations identified in Chu Kheng Lim v Minister for Immigration; and second, the power conferred by s 501(3A) took on a judicial character because of, among other things, the nature of the criteria which enlivened the duty to exercise it.

[69]    The plaintiff’s contention is untenable. The principle in Lim concerning the limits on the executive detention of non-citizens is only concerned with laws that require or authorise detention and has no broader operation. Section 501(3A) neither requires nor authorises the detention of non-citizens. The provisions that require and authorise the detention of unlawful non-citizens are found in Div 7 of Pt 2 of the Act. None of those provisions was challenged by the plaintiff. The fact that a person whose visa is cancelled under s 501(3A) will become liable to detention is not enough to attract the principle in Lim. Moreover, s 501(3A) does not otherwise confer judicial power on the Minister.

55    In support of his contentions, the applicant refers to the following statements of Edelman J at [94] and [130] of YBFZ (citations omitted):

[94]    But the Constitution creates no fiction that a disproportionate Commonwealth law that permits a person’s property to be taken is punitive. The Constitution creates no fiction that a disproportionate law that impairs personal security is punitive. And the Constitution creates no fiction that a disproportionate law that impairs liberty is punitive.

[130]    There is a competing view which has little to commend it. In reasoning which Hart lampooned more than half a century earlier as “a barren piece of conceptualism”, and which Professor Zedner described as a “none too subtle linguistic trick”, four members of this Court in Minister for Home Affairs v Benbrika characterised judicial orders for preventive detention as “protective and not punitive”. With great respect, that is a basic category error. Prevention or protection, on the one hand, and punishment, on the other, are not separate categories. As I explained in the same case, prevention of the commission of offences and protection of the community from offending are goals or purposes of punishment; it has been said that a reason that criminal law, with its focus upon the various purposes of punishment, exists is “for the protection of society”. Unsurprisingly, any distinction between punishment and prevention or protection has been politely described in this Court as being, at best, “elusive”.

56    It is unclear how the applicant seeks to rely on the statements of Edelman J in support of his contentions. Rather, his Honour stated at [137], referencing his joint judgment in Falzon extracted above:

The subsequent loss of the status, licence, or power upon commission of a relevant offence is not punishment. So too, when a visa is effectively subject to conditions that require cancellation of the visa if “the Minister is satisfied that the [visa holder] does not pass the character test”, such as by having a substantial criminal record, it is not punishment for the Minister to exercise a power to cancel the visa when the holder receives a substantial criminal record.

(Citations omitted.)

57    I accept the Minister’s submissions that the manner in which the applicant was notified of the Minister’s cancellation decision and then taken into detention and detained is not directly relevant to the validity of the Minister’s prior decision under s 501BA to cancel the applicant’s visa. Additionally, as outlined by the High Court in Falzon in relation to s 501(3A), s 501BA does not itself authorise detention, let alone prescribe the conditions for any such detention. The validity of the operation of the provisions which provided for the detention of the applicant following the Minister’s cancellation decision were not challenged by the applicant in this proceeding.

58    In relation to the applicant’s arguments regarding the “manner” in which the decision was made, which involved “circumventing” the appeals process, the applicant has failed to articulate how this is said to render the Minister’s decision punitive in nature.

59    As discussed in relation to ground 4, s 501BA operates independently from any judicial review of the Tribunal’s decision that may have been possible. The section permits the Minister to override the decision of the Tribunal. The very premise for the exercise of the power is a Tribunal decision favourable to the applicant. The Minister is not required to refute the Tribunal’s reasoning in exercising the power. The fact that the Tribunal’s decision may have been “lawful, thorough and carefully considered” does not provide a basis to render the Minister’s subsequent decision to override the Tribunal’s reasoning as punitive.

60    For the reasons provided above, I did not consider that ground 5 was reasonably arguable. Accordingly, I refused to grant leave to the applicant to raise it.

Conclusion

61    For the reasons provided above, grounds 1-4 will be dismissed. Leave was refused for the applicant to raise ground 5.

62    On a final administrative point, it was noted by counsel for the Minister during the hearing that the applicant should amend his application to also seek relief in the nature of prohibition to ensure that this Court has jurisdiction to deal with the application: see s 476A(1)(c), (2) of the Act, and s 75(v) of the Constitution. The applicant sought to take up this offer and was directed to file an amended application reflecting the additional relief sought. A further amended originating application reflecting the additional relief sought was lodged on 19 December 2024.

Associate:

Dated:    20 December 2024